1. G O V E R N M E N TA L L I A B I L I T Y
38 ■ For The Defense ■ July 2015
■ Dale Conder, Jr., is a member of the law firm Rainey Kizer Reviere & Bell PLC in the firm’s Jackson, Tennessee, office. He
practices in the areas of general insurance defense, employment law, and defense of municipalities and their employees, partic-
ularly police officers in §1983 litigation. Mr. Conder has published and lectured in the areas of trial practice, civil procedure, and
civil rights litigation. He is a member of DRI and the Tennessee Defense Lawyers Association.
A Defense for
Public Employees Qualified Immunity:
Its History
and Future
who can assert it, qualified immunity’s
applicability has changed, too. This article
will analyze the creation, development, and
applicability of qualified immunity.
The Origin and Evolution
of Qualified Immunity
Because 42 U.S.C. §1983 creates a type of
tort liability, the courts look to the most
closely analogous torts when deciding if
an immunity defense applies. Wyatt v.
Cole, 504 U.S. 156, 164 (1992). But even
if common law does support an immu-
nity defense, the courts will not apply the
defense if it is contrary to §1983’s history
or purpose. Id.
In applying this tort law-based analysis,
the Supreme Court of the United States has
held that police officers who make an arrest
based on probable cause and while acting
in good faith are immune from a §1983
claim. Pierson v. Ray, 386 U.S. 547 (1967).
The Court reached this conclusion because
at common law an officer who acted in
good faith when making an arrest was
immune from suit for false arrest. In other
words, under Pierson, good-faith immu-
nity protected an official sued in the offi-
cial’s individual capacity unless the official
“knew or reasonably should have known
that the action he took within his sphere
of official responsibility would violate the
constitutional rights of the [the plaintiff],
or if he took the action with the malicious
intention to cause a deprivation of consti-
tutional rights or other injury to the [plain-
tiff].” Wood v. Strickland, 420 U.S. 308, 322
(1973). The latter part of this test required
inquiry into the official’s subjective moti-
vation. But this subjective aspect interfered
with the purpose of qualified immunity,
that is, to prevent undue interference in
the operation of the government. Harlow v.
Fitzgerald, 457 U.S. 800, 806 (1982).
Unless qualified immunity stopped
insubstantial claims as early as possible
in the litigation process, it would fail in its
purpose of protecting efficient government
operation. Harlow v. Fitzgerald, 457 U.S. at
815–16. The subjective component of Pier-
By Dale Conder, Jr.
Qualified immunity
involves the common
law’s long history. Its
future in some circuits
seems uncertain.
From its creation, qualified immunity has given rise to a
lot of judicial opinions. And as the Supreme Court of the
United States has changed its formulation of the immu-
nity, its instructions on how to analyze the immunity and
© 2015 DRI. All rights reserved.

2. For The Defense ■ July 2015 ■ 39
son’s good-faith immunity led to inquiries
into officials’ subjective motivation, and
this in turn resulted in officials becoming
bogged down in protracted litigation. Id.
at 817–18. Because this is the antithesis of
efficient government, the Court abandoned
the subjective element of the defense.
InHarlowv.Fitzgerald,theCourtrefash-
ioned the qualified-­immunity defense “to
‘permit the resolution of many insubstan-
tial claims on summary judgment’ and to
avoid ‘subject[ing] government officials
either to the costs of trial or to the burdens
ofbroad-­reachingdiscovery’incases where
the legal norms the officials are alleged to
have violated were not clearly established
at the time.’” Mitchell v. Forsyth, 472 U.S.
511, 526 (1985) (citing and quoting Harlow
v. Fitzgerald, 457 U.S. 800, 817–818(1982))).
Under the new standard, individuals would
not be liable for damages provided that
“their conduct [did] not violate clearly
established statutory or constitutional
rights of which a reasonable person would
have known.” Harlow v. Fitzgerald, 457 U.S.
at 818. Under its new formulation, qualified
immunity “is immunity from suit rather
than a mere defense to liability.” Mitch-
ell, 472 U.S. at 526. Because this immunity
is lost if a case is erroneously permitted to
proceed to trial, a trial court’s order deny-
ing qualified immunity can be appealed
immediately when it is based on legal, as
opposed to factual, issues. Id. at 530.
How Are Courts to Undertake the
Qualified Immunity Inquiry?
In Saucier v. Katz, 533 U.S. 194 (2001),
the Court set forth the order of the two-
step inquiry for deciding the qualified-­
immunity issue: (1) Do the facts alleged
show that an officer violated a constitu-
tional right? (2) Was the right clearly estab-
lished at the time? Saucier, 533 U.S. at 201.
In the eight years after the Court issued
the Saucier opinion, lower court judges
and justices on the Supreme Court of the
United States criticized Saucier’s “‘rigid
order of battle.’” Pearson v. Callahan, 555
U.S. 223, 234-35 (2009) (citations omitted).
This criticism led the Court to abandon
Saucier’s “rigid order of battle.” Pearson,
555 U.S. at 236–37.
In Pearson v. Callahan, the Court did not
prohibit lower courts from following Sauc-
ier’s two-step process; the Court simply
gave lower courts the discretion to decide
if the Saucier procedure was worthwhile
in a particular case. Id. at 242. After Pear-
son, the courts became free to decide which
question to answer first in deciding the
qualified-­immunity analysis. Today, law-
yers representing defendants should argue
for a judge to apply the step that helps the
most in convincing the judge to sustain
the defense.
Who Can Take Advantage
of Qualified Immunity?
Qualified immunity is a defense available
only to individual government officials
who have been sued in their individual
capacities. See Owen v. City of Indepen-
dence, 445 U.S. 622, 638 n. 18 (1980). In
other words, a governmental entity cannot
assert qualified immunity as a defense. Id.
And because a suit against an individual in
his or her official capacity is tantamount to
a suit against the governmental entity, an
individual sued in his official capacity can-
not rely on qualified immunity. Mitchell
v. Forsyth, 472 U.S. at 555-56 n. 10 (citing
Brandon v. Holt, 469 U.S. 464 (1985)). Pri-
vate persons can be considered state actors
for purposes of §1983 liability, but can they
assert qualified immunity?
Can a Private Individual Assert
Qualified Immunity?
Section 1983’s purpose is to provide “a
cause of action against any person who
deprives an individual of federally guaran-
teed rights ‘under color’ of state law.” Filar-
sky v. Delia, 132 S. Ct. 1657, 1661 (2012).
And a private person “whose conduct is
‘fairly attributable to the state’ can be sued
as a state actor under §1983.” Id. (citing
Lugar v. Edmondson Oil Co., 457 U.S. 922,
937 (1982)). But can a private person rely on
qualified immunity?
Filarsky involved a private attorney
hired by the city to assist in an internal
affairs investigation. Id. at 1662. But would
his status as a private attorney deprive him
of the protection of qualified immunity?
In answering this question, the Court
looked to the common law of 1871. Id. In
doing so, the Court concluded that the
common law did not distinguish “between
public servants and private individuals
engaged in public service in according
protection to those carrying out govern-
ment responsibilities.” Id. at 1663. Quali-
fied immunity allows public employees to
carry out their duties free from the timidity
that the fear of damages suits would pro-
duce. Id. at 1665. And the Court found no
reason to draw a distinction between a gov-
ernment employee and a private individual
hired temporarily to aid the government in
carrying out its duties. Id. at 1665–66.
Inothercases,however,qualifiedimmu-
nity has not protected private citizens.
For example, in Wyatt v. Cole, 112 S. Ct.
1827 (1992), the individuals used the state
replevin law to force the sheriff to seize pri-
vate property. The individuals in Wyatt,
unlike the attorney in Filarsky, were not
pursuing the public good, nor did they
hold public office that required the use of
discretion. Filarsky, 132 S. Ct. at 1666–67.
Because the reasons for extending qualified
immunity in Filarsky to the private attor-
ney hired to assist the city were not present
in Wyatt, the Court did not allow the Wyatt
defendants to assert qualified immunity.
Wyatt, 112 S. Ct. at 1834.
The Court also distinguished Richard-
son v. McKnight, 521 U.S. 399 (1997), from
Filarsky. Filarsky, 132 S. Ct. at 1667. In Rich-
ardson, private guards, employed by a pri-
vate company that ran a private prison,
sought the protection of qualified immu-
nity. Id. The Court rejected the individu-
als’ quest for the protection of qualified
immunity. In doing so, the Court identi-
fied three “circumstances” relevant to the
qualified-­immunity analysis that would
warrant qualified immunity: (1) protecting
against unwarranted timidity, (2) ensuring
that qualified candidates are not deterred
from working for the government, and
Qualified immunity
allows public employees
to carry out their duties
free from the timidity
that the fear of damages
suits would produce.

3. 40 ■ For The Defense ■ July 2015
G O V E R N M E N TA L L I A B I L I T Y
(3) preventing officials from being dis-
tracted by lawsuits. Richardson, 521 U.S.
at 409–411. The circumstances in Rich-
ardson—“‘a private firm, systematically
organized to assume a major lengthy
administrative task (managing an insti-
tution) with limited direct supervision by
the government, undertak[ing] that task
for profit and potentially in competition
with other firms’—combined sufficiently
to mitigate the concerns underlying recog-
nition of governmental immunity under
§1983.” Filarsky, 132 S. Ct. at 1667. In other
words, the private market would suffi-
ciently address these three considerations
so there was no reason to extend the immu-
nity to private guards, employed by a pri-
vate corporation.
From the Court’s decisions, someone
can conclude that the law does not deny
qualified immunity categorically to private
individuals who act under color of state
law. A private individual’s entitlement to
qualified immunity depends on the indi-
vidual’s relationship to the government and
whether granting the immunity furthers
the purposes for qualified immunity. But
what about a private entity that contracts
with the government? Is this entity entitled
to qualified immunity?
Can a Private Entity Assert
Qualified Immunity?
Some circuits do appear to permit a pri-
vate entity to raise qualified immunity,
or at least they do not expressly reject the
idea. Fabrikant v. French, 691 F.3d 193 (2d
Cir. 2012) (allowing a private animal rescue
organization to assert qualified immunity);
Rosewood Services, Inc. v. Sunflower Diver-
sified Services, Inc., 413 F.3d 1163 (10th Cir.
2005) (recognizing that a defendant’s sta-
tus as a private corporation, without more,
is insufficient to prevent it from assert-
ing qualified immunity); Sherman v. Four
County Counseling, 987 F.2d 397 (7th Cir.
1993) (allowing a private psychiatric hos-
pital to assert qualified immunity); Frazier
v. Bailey, 957 F.2d 920 (1st Cir. 1992) (the
court granted immunity to a child-wel-
fare agency under contract with the state
because it held that the agency’s employees
were entitled to qualified immunity); Shi-
pley v. First Federal Savings Loan, 703 F.
Supp. 1122, 1131–32 (D. Del. 1988), aff’d,
877 F.2d 57 (3rd Cir. 1989) (Table) (holding
that the bank would be entitled to qualified
immunity if it were a state actor).
Other circuits, however, have adopted a
categorical rule prohibiting a private entity
from asserting qualified immunity; these
circuits include the Sixth, the Ninth, and
the Eleventh Circuits. United Pet Supply,
Inc. v. City of Chattanooga, 768 F.3d 464
(6th Cir. 2014), cert. denied, S. Ct.
, 2015 WL 50497; Halvorsen v. Baird, 146
F.3d 680 (9th Cir. 1998); Swann v. South-
ern Health Partners, Inc., 388 F.3d 834, 837
(11th Cir. 2004), overruled in part on other
grounds (a private entity contracting with
the state could not rely on qualified immu-
nity). The Supreme Court’s recent denial of
certiorari in United Pet Supply, Inc. v. City
of Chattanooga leaves this issue as one to
be decided by the circuit courts, at least
for now.
Contrasting the Views of the Courts
In Fabrikant v. French, 691 F.3d 193 (2d Cir.
2012), the Second Circuit concluded that
the animal rescue organization—SPCA—
was a state actor and that qualified immu-
nity protected it from suit. Id. at 210–12.
The court concluded that SPCA performed
an exclusively public function when it
seized animals and sterilized them because
this was part of the state’s police power,
and SPCA could not have done any of this
without the state delegating this power to
it. Therefore, qualified immunity protected
SPCA and its employees from suit. Id.
But in United Pet Supply, Inc. v. City of
Chattanooga, 768 F.3d 464 (6th Cir. 2014),
cert. denied, S. Ct. , 2015 WL 50497,
the Sixth Circuit held just the opposite. In
United Pet Supply, Inc., the Animal Care
Trust was a private nonprofit corporation
that operated under the name McKamey
Animal Care, and it contracted with the
city to provide animal welfare services.
Id. at 471. McKamey, acting through its
employees, investigated complaints against
a local pet store. Id. As part of the inves-
tigation, the employees removed animals
from the store, and eventually McKamey
caused the revocation of the pet store’s
license. Id. The pet store sued McKamey,
its employees, and the city under §1983. Id.
The Sixth Circuit allowed two employees to
assert qualified immunity because the city
employed them as special police officers.
Id. The court, however, denied the immu-
nity to a third employee because there was
no historical basis for granting immunity
to an animal welfare officer. Id. As for the
entity, the court treated the suit against it
as an official capacity suit and held that it,
similar to a municipality, could not assert
qualified immunity. Id. at 471–72.
In rejecting McKamey’s bid for qual-
ified immunity, the Sixth Circuit relied
heavily on the Supreme Court’s opinion in
Richardson v. McKnight. The Sixth Circuit
foundthatMcKameyhadmanyofthesame
characteristics as the private corporation in
Richardson. United Pet Supply, Inc. v. Chat-
tanooga, 768 F.3d at 481.
• Both were “‘systematically organized
to assume a major, lengthy adminis-
trative task—managing an institu-
tion—with limited direct supervision
by the government.’”
• McKamey was “wholly responsible”
for providing the city’s animal wel-
fare services.
• McKamey ran the facility.
• McKamey provided the care for the
animals.
• McKamey was responsible for finding
the animals’ owners.
• McKamey sold animal licenses and
processed the applications for the
licenses.
• McKamey was in charge of the rabies
program.
• McKamey created and operated the
spay/neuter program.
• The city did not supervise McKamey’s
employees.
Id.
The court then balanced the factors and
concluded that there was no reason to
grant qualified immunity to McKamey. Id.
at 482–83.
In Sherman v. Four County Counseling
Center, 987 F.2d 397 (7th Cir. 1993), the dis-
trict court and the Seventh Circuit allowed
a private mental hospital to assert qualified
The for-profitversus
nonprofit distinction did
not matter to the court.

4. For The Defense ■ July 2015 ■ 41
immunity. Id. at 398. In Sherman, the cen-
ter “accepted and treated Sherman pursu-
ant to a court order and in accordance with
the procedures” outlined by state law. Id. at
405. The center detained Sherman against
his will and administered antipsychotic
drugs without his consent. Id. at 399. In
affirming the district court, the Seventh
Circuit found that the policy justifications
behind qualified immunity justified allow-
ing the Center to seek its protection:
• The center accepted and cared for Sher-
man on an emergency basis.
• By accepting Sherman, the center ful-
filled a public duty.
• Without qualified immunity’s protec-
tion, private institutions might refuse
to accept these patients resulting in an
overloaded state system.
Id. at 405–06.
The Ninth Circuit, however, reached an
opposite conclusion in Halvorsen v. Baird,
146 F.3d 680 (9th Cir. 1998). In Halvorsen,
the county had a contract with a private
detoxification facility that allowed police
officers to drop off intoxicated persons
that they picked up. The officers picked up
Halvorsen and took him to the detoxifica-
tion facility, where he was held overnight,
against his will. Id. at 683. Halvorsen sued,
among others, the detoxification facility.
The Ninth Circuit, relying on Richard-
son, held that the facility was not entitled
to qualified immunity. Id. at 685. The for-
profit versus nonprofit distinction did not
matter to the court. Id. at 686.
The Tenth Circuit, while recognizing
that a private corporation could claim qual-
ified immunity, held that public policy con-
siderations did not justify extending the
immunity under the facts in Rosewood
Services, Inc. v. Sunflower Diversified Serv-
ices, Inc., 413 F.3d 1163, 1168-69 (10th Cir.
2005). The court relied heavily on Rich-
ardson in rejecting the private, nonprofit’s
claim of qualified immunity. Id.
In Weigand v. Spadt, 317 F. Supp.2d 1129
(D. Neb. 2004), the plaintiff sued, among
others, Emergency Medical Services, Inc.
(EMS) because she believed that she was
the victim of discrimination in her employ-
ment with the city’s fire department. Id.
at 1133–34. EMS was private company
that oversaw the city’s emergency medi-
cal services. Id. at 1134. EMS claimed that
it was a state actor and entitled to quali-
fied immunity. Id. The district court, how-
ever, rejected EMS’s argument because
EMS was more like than unlike Richard-
son. Id. at 1139–40. EMS’s contract was not
a “‘brief involvement’ with the city.” Id. at
1139. This is a factor that distinguishes this
case from Filarsky; in Filarsky the attor-
ney’s involvement was brief. EMS was not
providing “an ‘essential government activ-
ity’” by “providing oversight to out-of-hos-
pital emergency medical care providers.”
Id. Finally, as in Richardson, the govern-
ment did not provide “‘close supervision’”
of EMS. Id. at 1140.
In the Fifth Circuit, whether a pri-
vate entity can assert qualified immu-
nity remains an open question. See May
v. Strain, 55 F. Supp. 3d 885 n. 134 (E.D.
La. 2014).
Another unanswered question, however,
remains in the cases dealing with a pri-
vate entity and qualified immunity: Why
are these entities not treated similar to
municipalities and limited to a Monell-­type
defense? In Sherman, the Seventh Circuit
noted the issue, but decided that it need
not answer the question? 987 F.2d at 403 n.
4. And in Swann v. Southern Health Part-
ners, Inc., 388 F.3d at 837, the Eleventh Cir-
cuit treated the private entity as if it were
a municipality.
Conclusion
Anindividualemployedbythegovernment
who is sued in his or her individual capac-
ity for violations of federal statutory or con-
stitutional rights can assert the defense of
qualified immunity. To prevail, a defendant
must show that he or she did not violate
a clearly established federal statutory or
constitutional right of which a reasonable
person would have known. A private indi-
vidual retained to assist the government in
fulfilling its public duties can also assert
the defense. But when it comes to private
individuals or entities and qualified immu-
nity, the courts look for the circumstances
outlined in Richardson to determine if a
private individual or a private entity can
assert qualified immunity. Unless you have
a case in a circuit that has rejected quali-
fied immunity as a defense for private enti-
ties, you will need to develop an argument
showing why the Richardson consider-
ations don’t deprive your private entity cli-
ent of qualified immunity.